International Journal for Crime, Justice and Social Democracy

Successful Strategies to Improve Access to Justice for Women Who Kill Their Abusers

Danielle Tyson — 2024-12-02

This issue of the International Journal for Crime, Justice and Social Democracy has its origins in an inspiring and successful international workshop held at Deakin University Downtown in February 2023 (Successful Strategies for Improving Access to Justice for Women Who Kill Their Abusers). It is in this context that the international workshop drew together practitioners (practising lawyers, family violence experts, psych- experts) and researchers from a range of international jurisdictions (England, Scotland, New Zealand, Canada, United States, Germany and Australia) and disciplines (criminology, law, socio-legal studies, gender studies, Māori health and Indigenous studies and education), to share insights about their efforts to improve legal understandings of women’s experiences of intimate partner violence (IPV), their use of fatal force against an abusive partner and their self-defence claims.

Contributors to this special issue highlight, for example, the power of positive collaboration between academics, activists, lawyers, journalists and the women themselves. They identify strategies to challenge prosecutors’ decisions to prosecute Aboriginal women in the absence of evidence capable of disproving self-defence, and to identify key evidentiary checkpoints to enhance women’s access to self-defence and improve their chances of acquittal. They argue for the need to build the workforce and capacity of experts with frontline experience in IPV, emphasise the importance of understanding IPV through the lens of social entrapment, and propose targeted training to skill up practitioners to more effectively utilise the family violence evidence provisions available in some jurisdictions throughout the whole court process. Finally, they explore potential avenues for further reform drawing on successes and failures in advocacy and litigation across international jurisdictions.

Fighting for Justice for Women who Kill Abusive Partners

Harriet Wistrich — 2024-12-02

This article examines the collaborative process involved in campaigning for and representing women appealing murder convictions, highlighting the power of positive collaboration between lawyers, campaigners, frontline experts and the women themselves. Pragna Patel and Harriet Wistrich, who first met while protesting in the early 1990s outside the Royal Courts of Justice in London, have been pivotal figures in this movement. Patel has dedicated four decades to Southall Black Sisters, an organisation advocating for black and minority women. Wistrich co-founded Justice for Women and later specialised in representing women victim-survivors of male violence, challenging discrimination in the criminal justice system.

Their collaboration has led to significant precedent-setting murder appeals and reforms in domestic homicide law. This article reflects on their enduring involvement spanning three decades, detailing their efforts in individual cases and legislative reforms. Their approach focuses on obtaining detailed personal accounts from women and building legal strategies around them, aiming to challenge convictions through a feminist lens. Recently, their collaborative efforts prompted the United Kingdom government to commission the Law Commission to review defences in cases of homicide. This underscores their enduring impact in fighting for justice for women who kill their abusive partners and effecting legal change.

The Struggle for Justice for Battered Women: Still a Colossal Work in Progress, as Exemplified by Helen Naslund’s Case

Elizabeth Sheehy — 2024-12-02

This article recounts the campaign for justice for Helen Naslund, a Canadian woman who lived in rural Alberta when she killed her abusive husband Miles in 2011 as he slept. Rather than go to trial on self-defence, on the advice of counsel Helen pled guilty to manslaughter and then, consequent to a joint submission on sentencing made with the Crown, she was sentenced to 18 years in prison in 2020, the longest sentence on record for such a woman in Canada. The contributors to Helen’s journey, including Helen herself, a Senator, an academic, an activist, a lawyer and a journalist, all describe the roles they played in supporting Helen’s successful appeal against sentence in 2022 and her release from prison in 2023.

Promoting Aboriginal Women’s Human Rights – Understanding When not to Prosecute Aboriginal Women

Stella Tarrant — 2024-12-02

Legal assessments required by the law of self-defence cannot be made in the absence of an accurate understanding of the violence a person faced before they used force. This article shows how prosecutors are making errors in their decisions to prosecute Aboriginal women who have killed an abusive partner, due to inaccurate understandings of the violence faced by defendants in these circumstances. We argue this error is a fundamental error of law, not one of fact and discretionary authority. It amounts to prosecutors making decisions to prosecute Aboriginal women (and accept guilty pleas) in the absence of a prima facie case. We argue that such decisions by prosecutors can be challenged via an application for stay of proceedings for abuse of process or a ‘no case’ submission.

Identifying Evidentiary Checkpoints and Strategies to Support Successful Acquittals for Women who Kill an Abusive Partner During a Violent Confrontation

Rachel Dioso-Villa — 2024-12-02

This study examined 32 Australian cases of women prosecuted for killing their abusive male partners in self-defence between 2010 and 2023. The objective was to track the legal pathways and identify salient factors influencing both acquittals and convictions. While most women received a manslaughter conviction by pleading guilty, nearly all cases that proceeded to trial resulted in no conviction. Key findings include: the utility of partial defences as a safety net for self-defence; evidence of overcharging; the identification of “evidentiary checkpoints” at trial to downgrade or withdraw murder charges; a checklist for legal counsel advising clients on the risks of trial; the advantage of private legal counsel in successful self-defence claims; and the systemic disadvantage of Indigenous women, highlighting the need for continued research. These findings underscore the intricate dynamics within the legal system when addressing cases of intimate partner violence, emphasising the need for comprehensive reforms and support structures.

Improving Access to Justice for Women Who Kill Their Abusers: Practitioner Insights and Experiences

Danielle Tyson — 2024-12-02

Over the past decade, Australia has made significant reforms aimed at improving legal understandings of intimate partner violence, women’s use of force and their access to self-defence. While some courts have recognised the cumulative effects of coercive control and social entrapment on women’s responses, significant problems remain that deny many women access to justice. This article presents findings from a Victorian pilot study involving interviews with lawyers and experts who work with victim-survivors in these cases. Results revealed that a number of interviewees had limited knowledge of the family violence legislation. While psych-based expertise was seen as helpful, this tended to be in limited ways. Interviewees emphasised both the challenges accessing, and limited authority afforded, family violence experts/expertise by the courts. We conclude with recommendations for building the workforce and capacity of experts to work in this area and targeted training to skill up practitioners to more effectively utilise the family violence evidence provisions throughout the whole court process.

Advancing Socially Just Intimate Partner Violence Expert Testimony for Victim-Survivors Charged with Homicide: Critiquing the Old Bones of Knowledge

Rachel Smith — 2024-12-02

In assessing whether victim-survivors of intimate partner violence (IPV) were acting in self-defence in response to homicide charges, the criminal court favours disciplinary knowledges which erase social context and structural violence. This article argues that these factors are integral to understanding victim-survivors' experiences of IPV. The courts' overreliance on Euro-Western psych disciplines (psychiatry and psychology) that privilege neoliberal ideas of self and perpetuate flawed psychological theories of IPV is a significant problem. Critically, the white epistemology underpinning the psych disciplines and mainstream theories of IPV omit any appreciation of the operation of colonial violence, institutional racism, and the marginalisation of Indigenous women. This article suggests that experts must be able to critique the family violence response system using intersectional and anti-colonial conceptual frameworks. This will assist the criminal courts in understanding Indigenous and marginalised women's realities and support socially just outcomes in cases involving prosecuted victim-survivors. The article concludes by sharing the authors’ insights from providing expert evidence on social and systemic entrapment at trial and sentencing in the 2020 New Zealand case of R v Ruddelle.

Reforming the Landscape for Women who Kill their Abusers in Scotland

Rachel McPherson — 2024-12-02

Using Scotland as a case study, this paper identifies key areas in which there could be potential reform for women who kill their abusive partners. The study focuses on two particular areas: the use of specialised courts and the use of expert evidence on coercive control. The paper concludes that there exist multiple avenues of reform with the potential to improve women’s experiences of the criminal justice system. However, for these to be utilised, there must be clear recognition that cases of this type are domestic abuse cases. As such, they should be considered firmly within current national domestic abuse policy rather than continuing to sit outside existing frameworks.

Women Who Kill Their Abusive Intimate Partners in Non-Confrontational Circumstances - The Need for German Criminal Law Reform

Kerstin Braun — 2024-12-02

To acknowledge the lived realities of women who kill their abusive partners when they are sleeping or inattentive, several jurisdictions have reformed or reinterpreted their criminal laws. Some have introduced specific domestic violence defences while others construe existing defences more broadly in recognition of the circumstances under which abused women kill. Germany, however, has not adopted these approaches. Through analysis of the 2003 Bundesgerichtshof’s, the highest court of ordinary jurisdiction in Germany, so-called ‘family tyrant’ judgment, this article examines the treatment of women who kill their abusers in the German criminal justice system. The article concludes that law reform is necessary to better acknowledge the situation of female victims who kill their abusive intimate partners in non-confrontational circumstances in response to long-term domestic violence.